It appears that Lego is at it again. As some of you might recall, I previously authored a post reporting on a Smart Blocks Inc’s efforts to get its product released from customs after they had been seized during importation. It appears that Lego has now enraged another ostensible competitor who has decided to get a bit more aggressive with their allegations. Mega Brands, Inc., allegedly the “second largest construction toy company in the world” after Lego, similarly had its product tied up in customs and is alleging that its problems were the result of an inappropriate and fraudulent effort by Lego to mislead customs about the scope of its intellectual property rights. Mega Brands filed a lawsuit not only requesting an order to invalidate Lego’s purported trademark, but it also brought antitrust claims alleging that Lego is attempting to monopolize the market for construction toys.

This raises an issue which occasionally arises in defense of intellectual property infringement claims, but has a sketchy history when used as an affirmative claim for relief: intellectual property misuse. Patent misuse has a relatively well-developed history in United States law. Trademark misuse, however, has generally lost ground as a basis for defending against trademark claims. (See here.) Ultimately, it appears that Mega Brands did a good job here of avoiding explicitly characterizing its claim as one for “trademark misuse,” since courts have recognized that its not an affirmative claim for relief. Nonetheless, in my view, misuse of trademark is the functional basis for the antitrust claim in this case.

The interplay between intellectual property rights and antitrust law is always interesting because there is an inherent conflict. Intellectual property rights are, in essence, legalized monopolies. Accordingly, parties need to be make sure they are not carelessly exceeding the scope of those legalized monopolies, lest they get in trouble for unlawful monopolization.

Duets Blog Authors

Steve Baird

Just so you know, I'm all about brands and the law, both professionally and personally. I regularly annoy family and friends in retail stores by focusing on product labels—not to buy the product, but to read the fine print and ask, "Who owns these brands" and "Did they really register those marks?" More...

Jessica Gutierrez Alm

I wasn’t planning to be a lawyer. At least that was my thinking as I began law school. This degree was going to give me a leg up in my efforts to enter the business world. Lawyers live in the grey — where there’s never a right answer, only possibilities — and the favorite lawyer answer for any seemingly yes-or-no question: “it depends.” More...

Wes Anderson

As far back as I can remember, I've been fascinated with graphic design, visuals, and branding. I like to trace this back to my seventh birthday, when I was presented with a copy of Marc Okkonen’s Baseball Uniforms of the 20th Century. More...

Tiffany Blofield

Although my initial career path was to be one of the Supremes (not the musically talented ones with platform shoes and sequins, but rather, the nine wearing sensible shoes and pressed black robes in DC), I will likely stay in Minnesota as I have never lived anywhere else. More...

Martha Engel

Although my interest in gadgetry and my aptitude for math eventually led me to become an engineer, my ad executive father and artistically gifted mother fostered an appreciation for the creative from a young age. More...

Brent Lorentz

Although I wish I could say my path to the law was the result of a lifelong dream or calling, it was more the result mere curiosity and an affinity for leather-bound books. More...

Timothy Sitzmann

I have always considered myself to be a creative person. Full disclosure: I'm not claiming that I've created anything good, merely that I have created things that exist.More...

Brad Walz

My law career started on the ice…as a defensive hockey player (we’re not talking professionally…and if I were, I probably wouldn’t have gotten into law). More...